' Briefly stated the prosecution case as unfolded by complainant Muhammad Sharif (P.W.7) is that he resides in Mohallah Raikhti and runs his shop in Muslim Bazar, Chiniot. On 3-11-1996, his grandson Faisal was given beating by Amanat son of Ghulam Qadir and Tahir son of Rashid of Shaheen Tailors. On 4-11-1996 the complainant along with his son-in-law Ghulam Dastgir went to lodge protest with Amanat and Tahir upon which they issued threats of dire consequences to Ghulam Dastgir. On 5-11-1996 at 12-45 p.m. He (complainant) with Qaisar Jamil son of Khuda Baldish, Ghulam Dastgir son of Qadir Bakhsh were on their way. Ghulam Dastgir was going ahead of them.
As soon as Ghulam Dastgir reached in front of Shaheen Tailors, Tahir raised Lalkara that Ghulam Dastgir be not allowed to go alive. Amanat Ali took out a scissors and both of them ran towards Ghulam Dastgir. Tahir caught hold of Ghulam Dastgir from behind whereas Amanat gave scissors blow hitting Ghulam Dastgir on the left side of his chest. He (complainant) and Qaisar Jamil tried to rescue Ghulam Dastgir upon which Tahir pushed him, as a result of which he (complainant) fell down. In this scuffle Qaisar Jamil also received injury at the hands of Amanat. Both the assailants then decamped from there raising Lalkara. The incident was witnessed by Falak Sher who also reached the spot. The complainant removed the injured Ghulam Dastgir to Civil Hospital, Chiniot where he succumbed to the injuries.
2. The motive behind the occurrence is the threat which Amanat and Tahir had issued on 4-11-1996.
3-. On receiving information regarding this occurrence Muhammad Nawaz, S.-I. (P.W.10) reached hospital where he found the injured dead. He recorded complaint Exh.P.I. On the statement of complainant Muhammad Sharif (P.W.7). He prepared statement of injuries of the deceased Exh.P.E., inquest report Exh.P.F. And handed over the dead body to Muhammad Sharif, Constable for post- mortem examination. He thereafter proceeded to the place of occurrence, secured blood-stained earth vide memo. Exh.P.J., prepared rough site plan Exh.P.K. And recorded the statements of witnesses. After the post-mortem examination Muhammad Sharif produced last-worn clothes of the deceased which he secured vide memo. Exh.P.G. On 7-11-1996 he got the site plans Exh.P.L./A and B prepared through Draftsman Ghulam Dastgir. Thereafter, the investigation was conducted by Muhammad Sadiq, S.H.O. (P.W.12) who on 29-11-1996 arrested both the accused Amanat and Tahir. The accused Amanat led to the recovery of scissors P.3 from his shop which he secured vide memo. Exh.P.H. He also brought on record F.I.R. Exh.P.I./I prepared by Moharrir Matiullah. Safdar Ali, D.S.P. (P.W.9) verified the investigation conducted by P.W.10 and P.W.12. After completing the investigation the challan was submitted in the Court.
4. A charge under sections 302/337F(i)/337-L(ii)/34, P.P.C. Was framed against the accused to which they pleaded not guilty and claimed trial.
5. In order to bring home guilt to the accused the prosecution produced Dr.Mushtaq Bashir, M.
0. (P. W. 1) who on 5-11-1996 at 1-25 p.m. Medically examined Ghulam Dastgir and found the following injuries on his person:--
(1) Incised (stab) wound 1-1/2 c.m. x 3/4 c.m. x D.N.P. On the front and left side of chest 4 c.m. Below the left nipple, with cut present on shirt.
(2) Incised wound 1 c.m. x 1/4 c.m. On the outer front part of left chest, wound was skin deep.
' He kept injury No,1 under observation and advised its X-Ray. He issued medico-legal report Exh.P.A.
And sketch of injuries Exh.P.A./1 which bear his signatures.
' On the same date he examined Muhammad Sharif and found the following injuries on his person:- -
(1) Swelling 3 c.m. x 2 c.m. On the back of ring of right hand.
(2) Swelling 5 c.m. x 5 c.m. On the back and inner side of right forearm.
' Both the injuries were simple in nature and were caused with blunt weapon and were fresh in duration. He issued medico-legal certificate Exh.P.B. And sketch of injuries Exh.P.B./1 which bears his signatures.
' On the same day at 1-50 p.m. He examined Qaisar Jamil and found the following injury on his person:--
(1) Multiple abrasions in an area of 7 c.m. x 5 c.m. On the back of left hand.
' The injury had been caused with blunt weapon. He issued medico-legal report Exh.P.C. And sketch of injury Exh.P.C./1.
' Dr. Saif Ullah Haral (P.W.2) conducted the post-mortem examination of Ghulam Dastgir on 5-11- 1996 at 3-15 p.m. And found the following injuries on his person:-
(1) A stab wound 1-1/2 x 3/4 c.m. x thorax cavity deep on front and outer side of left lower chest with corresponding cut on the shirt.
(2) An incised wound 1 x 1/4 c.m. x skin deep on outer part front of left lower chest 2 c.m. Apart from injury No,1 with corresponding cut on the shirt.
' In his opinion the cause of death was shock resulting from internal and external haemorrhage as well as injury to vital organ, the heart, resulting from injury No,1 which was sufficient to cause death in the ordinary course of nature and was fatal to life. The probable time between the injuries and death was within 1/2 to 1 hours and between the death 'and post-mo rtem was ' within 2 to 4 hours: He "issued carbon copy of post-mortem report EA.P.13. And of injuries Exh.P.D:71 which bears his signatures. He also appended his seal 'and signatures on injury statement Exh.P.E. P.W.3 Ghulam Muhammad, Constable conveyed the parcel containing blood-stained earth to the:Office of Chemical Examiner. P.W.4 Muhammad Sharif escorted the dead body for postmortem examination and produced the last-worn clothes P.1. And P.2 of the deceased which were secured vide memo.
Exh.P.G. Muhammad Bashir P.W.5 identified the dead body at the time of post-mortem examination. Jahangir P.W.6 is a witness of recovery of scissors P.3 which was secured vide memo.
Exh.P.H. Muhammad Sharif P.W.7 corroborated his version appearing in complaint Exh.P.I. He also produced memo. Of recovery of blood-stained earth Exh.P.J. Which bears his signatures. Qaisar Jamil P.W.8 is an injured eye-witness who corroborated the prosecution version. He is also a marginal witness of memo. Exh.P.J. P.W.9 Safdar Ali, D.S.P., P.W.10 Muhammad Nawaz, S.-1. Are the Investigating Officers whose evidence has also been discussed above. P.W.11 Javed Khizar, H.C. Was given a parcel containing blood-stained earth on 24-12-1996. He delivered the said parcel to Ghulam Muhammad Constable on 3-1-1997 for onward transmission to the Office of Chemical Examiner. Muhammad Sadiq, S.H.O./Inspector P.W.12 is one of the Investigating Officers whose evidence has also been discussed above. On 15-4-1998 the learned P.P. Produced report of Chemical Examiner Exh.P.M. And of Serologist Exh.P.N. And closed prosecution evidence.
6. When examined under section 342, Cr.P.C. The accused Amanat Ali denied the prosecution version and in reply to question No,11 stated as follows:-- "On the relevant day Aurangzeb, the son of complainant Muhammad. Sharif, came to my shop and had a quarrel with Akram Khokhar, my novice/pupil. Akram Khokhar had taunted Aurangzeb for Benazir Bhutto having been deposed that day and Aurangzeb had retaliated him saying the possibility of Nawaz Sharif also meeting the same fate. There had been a quarrel between the two thereon. There had been exchange of abuses, fists and kicks. They also grappled with each other.
Aurangzeb then left holding out a threat to Akram Khokhar for being taught a lesson therefor. On the same day, at about 12-30 p.m. Aurangzeb, Ghulam Dastgir (deceased), and Latif accompanied by 2/3 other persons, all armed with hockeys and sticks came into my shop, named Shaheen Tailoring Shop and started belabouring Akram Khokhar. I was then cutting cloth with the scissors. I tried to intervene and separate both the parties. The assailants also entangled me in the fight. In the tussle the scissors in my hand got struck to Ghulam Dastgir whereby he got injured. Akram Khokhar went to get himself medically examined, but the complainant party stopped him on the threat that otherwise he would also be implicated as an accused in the case and, having got frightened, he refrained from getting himself medically examined. It was the complainant party which, in the investigation, was found aggressor. They, faced with that eventuality, got the investigation transferred to the D.S.P.; who ordered us being challaned baselessly. I had got no motive to kill the deceased and neither had got any intention therefor. The complainant baked up a false story and then got the present case registered against him and the co-accused baselessly."
' The accused Tahir also denied the prosecution story and adopted the statement of co-accused.
Both the accused did not examine themselves under section 340(2), Cr.P.C. Nor adduced any evidence in their defence.
7. After going through the evidence produced by the prosecution the learned Sessions Judge, Jhang while acquitting Tahir convicted Amanat Ali under section 302(b). P.P.C. Vide judgment, dated 21-4-1998 and sentenced him to life imprisonment and compensation of Rs,50,000 or in default thereof to undergo R.I. For two years. It was further ordered that the compensation, if recovered, shall be paid to the legal heirs of the deceased. He was also extended the benefit of section 382-B, Cr.P.C.
8. The appellant has felt aggrieved and filed the instant appeal. Alongwith this appeal Criminal Revision No,239 of 1998 has also been tiled for the enhancement of sentence. As both the Criminal Appeal and Criminal Revision arise out of the same judgment, so the same are being disposed of by this single judgment.
9. It may also be mentioned here that Criminal Appeal No, 519 of 1998 was filed by the complainant Muhammad Sharif against the acquittal of Tahir. The said appeal has been dismissed vide order, dated 27-9-2000.
10. Arguments have been heard and record perused.
11. Stand of the learned counsel for the appellant is that the motive set up by the prosecution has not been proved as held by the learned trial Court, that similarly evidence of recovery of scissors P.3 is of no effect as it was not stained with blood, that prosecution case mainly rests upon the statements of .Complainant Muhammad Sharif (P.W.7) Qaisar Jamil an injured eye-witness (P.W.8) and Dr. Mushtaq Bashir (P.W.2), that as per prosecution version it appears that it was during the tussle which ensued at the relevant time that the accused/appellant tried to intervene and in that process scissors hit the chest of the deceased, that there is no repetition of the blows on the part of the accused/appellant, that the weapon of offence used in the commission is not a conventional weapon of offence and as such intention to commit murder of the deceased cannot be attributed to the accused/appellant, that the learned trial Court has disbelieved the prosecution evidence but at the same time has also not believed the defence version in toto, that it was incumbent upon the learned trial Court either to accept the prosecution version or the defence version in its entirety, that the nature of weapon used spells out that the offence does not fall under section 302, P.P.C. But it falls under section 315, P.P.C., that the learned trial Court has tried to rely upon the admission of the accused as is evident from his reply to question No,11 as reproduced above but has not believed the said statement in its entirety and as such has committed a material irregularity in appreciating said statement. He further submitted that the instant occurrence was neither a premeditated nor a planned one, as such even if the admission of accused/appellant is taken into consideration the offence either falls within the provisions of section 315, P.P.C. Or under section 302(c), P.P.C. He further submitted that in such cases the punishment awarded ranges between 5 to 10 years. He thus, submitted that the sentence awarded to the accused/appellant requires modification.
12. Conversely the impugned judgment has been supported by the learned counsel for the complainant. To supplement his submissions he submitted that the occurrence took place on 5-11- 1996 at 12-45 p.m. Whereas report was lodged on the same day at 2-20 p.m., that the injured Ghulam Dastgir since deceased was medically examined at 1-25 p.m. Whereas Muhammad Sharif P.W.7 and Qaisar Jamil P.W.8 were examined at 1-45 p.m. And 1-50 p.m. Respectively, that this promptness in lodging the F.I.R. As well as medical examination of the deceased as well as P.Ws.
Rules out any possibility of false implication. He further argued that the occurrence having taken place at daylight the question of mistaken identity of the assailants/accused/appellant does not arise. He further contended that the learned trial Court has not mainly relied upon admission of the accused/appellant while returning its verdict but has relied upon the prosecution evidence, that though motive aspect of the prosecution version has not been believed yet weakness of motive is no ground to award lesser punishment and placed reliance upon Imtlaz Ahmad v. The State 2001 SCM R 1334.
13. In the instant case the occurrence almost stands admitted by the accused/appellant as is evident from his reply to question No,11 discussed in para. No,6 (supra). It is also a fact that death of the deceased is the result of injuries caused by scissors which has been attributed to the accused/appellant. It is also a fact that the occurrence has taken place, if not in the shop of the accused/appellant, just in front of his shop. It is also evident from record that the accused/appellant had tried to intervene and in that process injuries were caused to the deceased. As such no premeditation can be attributed to the accused/appellant. It is also a fact that scissors has not been used as a conventional weapon for causing death. It is also evident from the impugned judgment that even the trial Court has held that prosecution has failed to establish the motive as alleged in the F.I.R. And such findings do not stiffer from any infirmity. The stand of prosecution is that accused had given a beating to Faisal and as they lodged protest with the accused, so the latter incident took place resulting into the death the deceased. Neither the F.I.R. Nor the statement of complainant contains any cause of said dispute. This being the factual position, the motive remains shrouded in mystery. Again in the instant case fatal blows have been caused by scissors which is not a conventional v c upon used for causing death . Admittedly the accused/appellant is an owner of tailoring shop and at the relevant time was working in his shop, so he tried to intervene to bring about settlement between two factions and it is in this tussle/process that it (scissors) struck the chest of the deceased. Thus, under these circumstances, the accused/appellant cannot be saddled with any premeditation to cause death of the deceased. It is also admitted position that either the prosecution story is to be believed or in the alternative defence plea emerging out of the statement of accused and that too in entirety.
14. For what has been stated above, it is proved that accused/appellant had not caused injuries to the deceased with the intention to commit his murder, as such case does not fall within the ambit of section 302(b), P.P.C., but it falls under section 302(c). Accordingly conviction record by the learned trial Court is not sustainable and the same is modified under section 302(c), P. P.C.
Consequently, the sentence of imprisonment for life is reduced to fourteen years' R.I. However, the sentence of compensation awarded by the learned trial Court is maintained. The appellant shall be entitled to the benefit of section 382-B, Cr. P. C.
15. With this modification in the sentence, the appeal stands dismissed.